But this was worse.
The defendant’s own daughter was about to walk into the courtroom and blow them away. A six-year-old, cute as a button. The jury would eat up everything she told them. And what was she going to tell them? That her father was guilty, with a capital G. And if that wasn’t bad enough, here was the father, all but admitting it by saying, “I don’t think so.”
Flynt Adams was no dummy. He knew full well that Stephen’s “I don’t think so” could mean only one thing. And he hated Stephen for it, wanted to strangle him. Not just because of what he’d done to his daughter. That he could forgive him for. He was one sick bastard, to be sure, but when you made your living defending criminals, you tended to meet people who’d done very bad things, and you learned to get past it.
No, he hated Stephen for another reason altogether, one that only a trial lawyer could even begin to comprehend. He hated him because he now knew that what Stephen had done to his daughter was going to cause Flynt Adams to lose this case. So he did what every conscientious lawyer does when he realizes he’s about to go down in flames.
He looked for a way out.
“Suppose I could get you five years’ probation with psychiatric counseling,” he said, having no idea whether Jim Hall would go for it, or Justice McGee, either, for that matter. But he wasn’t above begging. Begging was part of being a criminal defense lawyer, too.
“what would I have to do?” asked Stephen.
“Plead guilty,” said Adams. “Admit you did those things your daughter says you did.”
Stephen tried to think about that, but thinking about anything was becoming increasingly difficult. He’d reached the point where he was no longer certain what the truth was. He couldn’t remember doing those things. Surely he would have remembered: You couldn’t possibly do stuff like that, and then not remember, could you? But then again, here was Penny, saying he’d done them. And Penny didn’t lie - not even that time she’d broken the thermometer, causing all the Jupiter to spill out.
Maybe Penny wasn’t sure, either. Maybe they’d washed her brain so much that she no longer knew what was true and what wasn’t. Maybe she was looking to him for her answer. But if that was so, and he were to stand up in court now and say, “Yes, God help me, I did those things,” then it would become the truth for her, and she’d have to live the rest of her life believing that her father had, in fact, abused her and that there must have been something terrible about her that had caused him to do it.
How could he do that to her?
He turned to Adams. “No,” he said, “I can’t do that.”
And Flynt Adams thought he understood. There were certain clients who, no matter what they’d done and how overwhelming the evidence against them might be, simply couldn’t bring themselves to admit their guilt. Not to the judge, not to their own lawyer, not to members of their own family, not even, sometimes, to themselves. And given the nature of what Stephen Barrow had done, it wasn’t hard to see why he was having trouble admitting it.
And another thing. Adams had found over the years that the one thing his criminal clients had most in common was their infinite capacity to act in self-destructive ways. They robbed the convenience store they’d once worked at, so they’d be sure to be recognized by employees who knew them. They got caught full-face on the security camera, left perfect fingerprints on the cash register, and drove off in a car they’d rented under their own name the day before. Arrested, they either confessed or claimed a demonstrably false alibi. Offered a five-year plea bargain, they invariably turned it down, went to trial, and ended up with twenty. Finally up for parole consideration after ten years, they continued to insist they were innocent, earning an additional five for failure to accept responsibility.
At every step - from the planning to the parole board - they acted as their own worst enemy. Stephen Barrow was smarter than most of them, and certainly more educated. But obviously he was no less self-destructive. All Adams had to do to remind himself was to think back to the McDonald’s episode, the kidnapping. You couldn’t get much more self-destructive than that.
“Okay,” Adams told Stephen, patting him on the arm. “Okay.”
He wanted to kill him.
“The people call Penny Barrow,” announced Jim Hall as soon as opening statements had been completed. Having alerted the defense that he intended to call Penny at some point, and having made the same promise to the jury, Hall had failed to reveal that she would, in fact, be his very first witness. His announcement now not only caught the defense by surprise (making it two for two that morning), but produced a collective gasp from the jury box.
Adams bounced to his feet. “May we approach the sidebar?” he asked.
“Yes,” said the judge, “come on up.” Her voice had a weary quality to it, as though to convey the impression to the jury that it might have been the twentieth time Adams had made such an interruption, when it was actually the first. But inflections of that sort don’t show up on court transcripts, as judges well know.
Both lawyers, the court reporter, and the clerk gathered around the judge in a sort of football huddle. From where he sat Stephen wasn’t able to hear the conversation, but he could see that Adams was doing most of the talking and Hall most of the smiling, with the judge throwing in an exaggerated eye-roll now and then. Then they broke the huddle, and the players returned to their positions.
“We’ll take a brief recess,” said Justice McGee. Everyone waited while the jurors were led out of the room. What a way for a trial to begin, thought Stephen. The first witness gets called and doesn’t even make it into the courtroom before they announce a time-out. Hollywood would never put up with a wasted scene like that.
“Bring in the child,” said Justice McGee. At a nod from Jim Hall, Hank Bournagan rose from the prosecution table and left the room by a side door.
A hush fell over the courtroom as all eyes remained glued to the door. A minute went by, maybe more. Then it swung open, and in walked Bournagan, followed by an entourage consisting of Ada Barrow, Jane Sparrow, and Cathy Silverman. Only when the adults in front of her got out of the way was Stephen able to see that Silverman was leading his daughter by one hand. Wrapped over Penny’s other arm was her Baba.
The sight caused Stephen to rise to his feet involuntarily, and Flynt Adams had to place a hand on his shoulder and lower him back down into his chair. What was it Stephen had been going to do or say? He hadn’t the slightest idea.
Penny was led to the witness stand and told to sit. It was a full-sized chair, evidently intended to be ample enough for the widest of witnesses, and she seemed tiny in it, lost. Bournagan resumed his spot next to Hall at the prosecution table. Stephen’s ex-wife and her lawyer were directed to take seats in the front row. Only Cathy Silverman was allowed to stay next to Penny, taking up a position beside her like some foreign-language interpreter.
Justice McGee put on her best imitation of a smile. “Hello, Penny,” she said. “My name is Priscilla McGee. I’m the judge.”
“Hello, Priscilla.” Penny’s voice seemed small and far away. She glanced at Stephen, caught his eyes, and looked away.
“I want you to relax,” said the judge. “Everything’s going to be just fine. Okay?” From the way she spoke, Stephen could tell she’d never had children of her own.
“Okay,” said Penny, arranging her blanket on her lap.
“How old are you?”
“Seven.”
McGee looked up. “I thought you said she was six.”
“Saturday was my birthday,” explained Penny.
Stephen felt a stabbing sensation in his chest. May 20, of course. He’d forgotten his daughter’s birthday. No matter that he’d been in jail, unable to be with her to celebrate it. He’d forgotten it. How could he have been so wrapped up in his own problems to have let that happen?
“Penny,” asked the judge, “do you believe in God?”
She seemed to consider that for a moment, before answering, “I don’t
know.”
“Do you know what it means when you promise you’re going to do something and then swear to do it?”
“Yes.”
“What does it mean?”
“It means you’re really going to do it, no matter what.”
“And do you know what it means to tell the truth?”
“Yes.”
“What does it mean?”
“To not tell a lie.”
“Right. And what’s a lie?”
“When you make something up.”
“Very good,” said the judge, as though she were talking to a three-year-old. “Now is it better to tell the truth or to lie?”
“It’s better to tell the truth.”
As he sat listening, Stephen remembered what his lawyer had told him - that without his daughter’s testimony, they probably couldn’t convict him, but with it (at least the version depicted on the videotape) they most surely would. He knew, therefore, that he should be rooting against Penny, hoping she couldn’t come up with the right answers that would qualify her to be a witness. And yet he found he couldn’t do that, that quite the opposite was true. She was his daughter. She was smart as a whip. And with each correct answer she gave, all he could feel was pride. He knew that was totally crazy, but still he couldn’t help it.
“Why is it better to tell the truth?” the judge wanted to know.
Penny shrugged. “It just is,” she said.
“What happens to you if you tell a lie?”
“Nothing.”
“Don’t you get punished?”
“I don’t know.”
Of course, she doesn’t know, Stephen wanted to shout. His daughter didn’t tell lies, and he didn’t punish her. Was that so difficult to understand?
Apparently so, for the judge. “So if you don’t get punished, why is it better to tell the truth?”
Again Penny’s eyes sought Stephen’s, and he tried to nod at her, to let her know in some small way that it was okay, that she was doing just fine. That he loved her.
She looked up at the judge and said, “It’s just one of those things that’s right to do, that’s all.”
And to Stephen, Penny suddenly appeared to go blurry, as though she’d somehow slipped out of focus, and it took him a moment to realize it wasn’t her at all; it was the tears in his eyes.
“Have her step outside,” said the judge, and Penny was escorted from the room. “Mr. Adams, I take it you still object to her being sworn?”
“Yes, your honor. The law sets twelve as the presumptive age at which a child may give sworn testimony. This child isn’t twelve. She’s not eleven or ten or nine, or even eight. She’s seven years and three days old. And no matter how cute she may look and how smart she may sound, she’s not even close to the age the legislature had in mind when they wrote the statute.”
As Adams sat, Jim Hall rose.
“No need, Mr. Hall,” said the judge. “I find that the child is extraordinarily intelligent and wise beyond her years. Even better than saying you should tell the truth to avoid being punished, she seems to comprehend that truth-telling is intrinsically better than lying. I can’t imagine where she picked that notion up, but it’s more than most of our adult witnesses know. I find that she understands the nature of an oath, and can be sworn as a witness. Put her back on the stand and bring in the jury.”
Adams slumped visibly in his chair. Stephen felt his loyalties divided. He was proud of his daughter, but felt bad for his lawyer. His own survival skills had all but abandoned him; he no longer knew what was best for him. In his mind, the outcome of the trial no longer depended on his own testimony, as he’d once been told it would. It depended instead on his daughter’s, and whether his lawyer would be clever enough to discredit her when it came time for him to cross-examine her. But discredit was the wrong word; the word you always heard them use was destroy.
How on earth could he hope for that?
The jurors hadn’t expected Penny to be on the witness stand when they returned to the courtroom, and as they filed in and took their seats in the jury box, every one of them stared at her intently. One or two smiled at the sight of her, only to quickly remember the dreadful things she’d come there to tell them.
“In the matter of the People of the State of New York versus Stephen Barrow, do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?”
“Yes.”
“Would you tell us your name, please.”
“Penny Barrow.”
“And how old you are?”
“Seven.”
“Mr. Hall, you may inquire.”
Hall rose slowly - Stephen thought even overdramatically from his chair, stepped to the podium, and arranged his notes. “Good morning, young lady,” he said to Penny.
“Good morning,” she replied, adjusting her blanket protectively.
“What’s your Daddy’s name?”
“Stephen Barrow.”
“Do you by any chance see him in the courtroom?”
“Yes.”
“Could you point him out for us?”
Penny dutifully pointed in Stephen’s direction.
“May the record reflect,” said Hall, “that the witness has correctly indicated the defendant?.” He stressed the last syllable of the word, as though to suggest that Stephen was not so much a human being as an insect of some sort.
“Back in February, right before Valentine’s Day, were you living with your daddy?”
“Yes.”
“Was anyone else living with you, or was it just the two of you?”
“Just the two of us.”
“By the way, do you love your daddy?”
“Yes.”
“You wouldn’t say anything to hurt him, would you? Unless it was the truth, that is. Would you?”
“Objection,” said Flynt Adams.
“Overruled,” said the judge.
“Would you?” Hall repeated.
“No.”
“Do you remember one day, toward the end of the time you were living alone with your daddy, that he took some pictures of you with a camera?”
“Yes.”
“Do you remember him taking several pictures of you when you had no clothes on?”
Penny hesitated. “How many is several?” she asked.
“Three or four.”
“Yes.”
“Do you remember one picture in particular, in which you were bending way over, facing away from your daddy, and your rear end was pointed toward him?”
The courtroom, already hushed, went stone quiet. No one had expected Jim Hall to move in for the kill quite this quickly.
“Do you remember that picture?” Hall asked.
“Yes,” said Penny.
“Very good,” said Hall. “Now do you by any chance remember whose idea it was that you bend over like that?”
Just to his right, Stephen thought he could hear Flynt Adams mumble, “Just say no.”
But Penny was too far away to hear. “Yes,” she said.
“Do you think you could point out that person for us?”
Slowly, Penny uncurled one tiny fist, and extended one slender index finger.
To Stephen, it suddenly seemed as though he were watching the trial from somewhere else, and that things had somehow shifted into very slow motion. And the thought that dawned on him was this: How strange to witness the precise moment when my life ends. Not when I took the photo - I had no idea then that I was doing anything that would ever turn out to be important. But this moment now, this is what I’ll always look back on, as the single moment in my life when being a father came to an end for me.
Slowly, tantalizingly slowly, as though teasing some unseen playmate in a game of eeny-meeny-miney-mo, Penny swung her finger in a wide arc, aiming it closer and closer to Stephen. And then, at the very last moment, just before settling on him for good, she redirected it, until her fingertip came to rest against her own chest.
In th
e jury box, twelve pairs of eyes widened and swung from the witness to the prosecutor.
“I don’t think she understood what you wanted her to do,” said the judge. “I think she’s asking you, ‘Who’s supposed to do the pointing?’”
“My mistake,” said Jim Hall. “Why don’t you just tell us, young lady, like you told Cathy. Whose idea was it for you to bend over like that?”
And Penny looked straight at him and said, “It was my idea.”
Hall cleared his throat. “Are you sure?” he asked her.
“Sure, I’m sure. I mooned my father. I saw them do it in Grease. I thought it would be funny.”
Even as Stephen fought back his tears, even as Flynt Adams came to life and straightened up in his chair, even as the jurors whispered among themselves, even as Priscilla McGee banged her gavel to restore order - even then, Jim Hall wasn’t finished.
“Do you remember,” he boomed, “answering some questions for Cathy here, just four days ago?”
“Yes,” said Penny.
“And did Cathy ask you if your daddy made you bend over like that?”
“I guess so.”
“And did you say, ‘Yes, he did’?”
“Yes, but-”
“And did Cathy ask you if he’d made you do things like that before?”
“Yes.”
“And you said, ‘Yes, he had’?”
“Yes.”
“And Cathy asked you, ‘How many times?’“
“Yes.”
“And you said, ‘Three or four’?”
“Yes.”
“Well, young lady, were those things true when you said them to Cathy?”
“No.”
“No? Then why did you tell her they were?”
If there is one cardinal rule to cross-examination, it is to never ask a question unless you know in advance what the witness’s answer will be. But right after that comes a second rule, almost as important, but far too often forgotten.
Never ask a why question.
Jim Hall would explain later on that he felt he had no choice, that given Penny Barrow’s acknowledgment that she’d told Cathy Silverman the truth (or at least what Hall still considered to be the truth), he had no choice now but to demand an explanation for her sudden claim that it hadn’t been.
Best Intentions Page 27